The Third District Court
of Appeal yesterday reinstated a challenge to a state law that gives in-state
college tuition to aliens who are in the country illegally if they attended
California high schools.

Federal law prohibits
the state from granting the in-state tuition rate to persons who lack lawful
immigration status unless it grants the same rate to all U.S. citizens
regardless of California residence, Justice Richard Sims III wrote for the
court.

The justices reinstated
claims by persons who pay out-of-state tuition to attend the University of
California, the California State University, or community colleges that
Education Code Sec. 68130.5 is preempted by 8 U.S. Secs. 1621 and 1623. The
court also held that the plaintiffs may amend their complaint to allege
violation of the Fourteenth Amendment’s Equal Protection and Privileges and
Immunities clauses.

Immigration Reform Law

Sec. 1623, part of the
1996 immigration reform law known as IIRIRA, provides that “an alien who is not
lawfully present in the United States shall not be eligible on the basis of
residence within a State...for any postsecondary education benefit unless a
citizen or national of the United States is eligible for such a
benefit...without regard to whether the citizen or national is such a
resident.”

Sec. 1621, part of the
1996 welfare reform legislation, generally provides that a person who is in the
country illegally “is not eligible for any State or local public benefit,”
including “any... postsecondary education...benefit” except “through the
enactment of a State law after [Aug. 22, 1996], which affirmatively
provides for such eligibility.”

Yolo Superior Court
Judge Thomas Warriner dismissed the suit after sustaining demurrers to all
causes of action. In support of those demurrers, the defendants argued that
in-state tuition is not a “benefit” and that it is granted to illegal aliens
based on their having attended and graduated from a California high school, and
not on the basis of “residence.”

They also contended that
Sec. 68130.5 is not preempted by Sec. 1621 because it was enacted after the
federal statute and “affirmatively provides” for in-state tuition for students
who lack legal immigration status but meet the statute’s eligibility
requirements.

But Justice Richard Sims
III, writing for the Court of Appeal, said the trial judge was in error with
respect to the two federal statutes.

Fee Difference

The huge differential
between in-state and out-of-state tuition and fees—more than $17,000 per
semester at UC, more than $10,000 on average at CSU, and more than $1,600 for a
student with an average load of 15 credits at a community college—makes the
lesser rate a “benefit,” Sims wrote.

Nor, the justice said,
is there any meaningful distinction between granting the lesser rate on the
basis of where the student attended high school and doing so based on
“residence.”

The justice explained:

“The three-year
attendance requirement at a California high school is a surrogate residence
requirement. The vast majority of students who attend a California high school
for three years are residents of the state of California. Section 68130.5
thwarts the will of Congress manifest in title 8 U.S.C. section 1623.”

For similar reasons,
Sims went on to say, the state law is preempted by Sec. 1621. The fact that it
was later enacted does not spare it based on the “affirmatively provides”
language, he explained, because there is no reference to Sec. 1621 in the state
law.

With respect to the
constitutional claims, the justice wrote, the pleading was deficient because it
did not allege on its face that illegal aliens were being given a benefit
denied to U.S. citizens from other states, who, on the face of the statute,
qualify for the lesser rate if they attended a California high school for at least
three years and graduated..

The plaintiffs alleged
on appeal, however, that some campuses have implemented the state statute by
denying in-state tuition to citizens who graduated from California high schools
but moved out of state before returning for college. If this is true, the
justice wrote, there may be a constitutional violation, which the plaintiffs
may allege by amendment.

The plaintiffs were
represented by Kris W. Kobach of the Immigration Reform Law Institute and
Michael J. Brady of Ropers, Majeski, Kohn & Bentley. Kobach is a law
professor at the University of Missouri-Kansas City and the chairman of the
Kansas Republican Party, and has been involved in other lawsuits involving the
rights of undocumented immigrants around the country.

The defendants were
represented by the firm of Howard Rice Nemerovksi Canady Falk & Rabkin.

Amicus briefs were filed
for the Pacific Legal Foundation on behalf of the plaintiffs and for the
Lawyers’ Committee for Civil Rights, the Mexican American Legal Defense and
Educational Fund, and other groups and individuals in support of the
defendants.

The case is Martinez
v. Regents of the University of California, 08 S.O.S. 5512.